Agong could have granted Najib release by Decree, from arbitrary detention, based on miscarriage of justice arising from Tainted Ruling in the High Court on 28 July 2020, but the latest statement from the Pardon Board has created more discord
Commentary And Analysis . . . ICommentary And Analysis . . . In the wake of the Pardons’ Board statement on 2 February, which advised halving former Prime Minister Datuk Seri Najib Tun Razak’s 12 year jail sentence for the RM42m SRC International case, questions have arisen in public on the related RM210m fine. Further questions have arisen in the media on whether the halving means that Najib was granted “Partial Pardon” and whether the Pardons’ Board has jurisdiction on a matter determined by the court of law and issues related to Agong’s Decree based on Discretion.
The 12 years jail, and RM210m fine, was imposed by the court of law.
Only the court can reduce it or do away with the sentence. Najib has already exhausted options in court.
Of course, no court will go against Agong if he reduces the jail and fine. Still, how will Agong justify creating precedent? In law, Article 8 in Malaysia, there can be no discrimination save as provided by law.
It must be freedom by Decree, re miscarriage of justice, based on Discretion. It cannot be Pardon and/or Partial Pardon based on Discretion.
The 29 January Decree was noted by the Conference of Rulers on 30 January. It was chaired by the Johor Sultan as the Agong-designate.
The following external link mentions fine and Partial Pardon. More on the Partial Pardon, whatever it means, later.
If we take the cue from the halving, under the Decree, the RM210m fine was accordingly reduced automatically. Decree isn’t based on law but Discretion. No court will go against Agong on Discretion. The court has no jurisdiction on Discretion i.e. it’s not matter for judicial consideration and resolution. The court of law was only about law.
The following external link does not go into the special circumstances on the Najib case/s.
No one in their right mind pays disproportionate fines. In default, the accused serves further jail which runs concurrently with the main jail sentence. Therein the matter lies. In jurisprudence, disproportionate sentences are unlawful. Let’s not go there. The AGC (Attorney General’s Chambers) may have theology coming out of its ears. The court cannot get into theology. It’s only about the rule of law, the basis of the Constitution.
The Decree by the previous Agong, which halved the jail sentence imposed on Najib, couldn’t have been Pardons’ Board Matter. The Board, which was chaired by the Agong for the last time on 29 January, may have met on Petition from convicts as matter of routine. The jury was no longer out on whether Najib’s case comes under the jurisdiction of the Pardons’ Board.
The proverbial cat may be out of the bag on Najib being jailed unrepresented, on 23 August 2022, on the SRC case. Again, we learn that based on the unwritten maxim that “sxit happens”, the previous Agong granted Najib Decree which halved the jail sentence. He now serves six years, albeit on paper, as a third would be deducted for weekends and public holidays and good behaviour. He serves half the remaining four years and becomes eligible for release, with or without Pardon.
We have the figures between now and 23 August this year when Najib goes home.
The following remains necessary extract from the above internal link.
“It’s true that one third of Najib’s six years, based on procedures, would be taken off for weekends, public holidays and good behaviour.”
“That leaves four years. “
“Najib serves half the four years, i.e. two years, and becomes eligible for freedom, with or without Pardon. The High Court — read the Dr Ganja case — can order his release. Najib, Agong or no Agong, will be home on 23 August this year. That’s seven months away. The eagerly awaited government and/or Istana statement on Najib would probably come only on 21 August, i.e. two days before he goes home, lest there’s political fallout, or not all. Instead, Attorney General (AG) Tan Sri Ahmad Terrirudin Mohd Salleh may bring up the matter during any Najib case.
There was no reason for the previous Agong looking at Pardon for Najib.
The following, necessary extract from the said internal link, keeps the Pardon issue in perspective.
Patently, Agong discovered that Najib’s jailing wasn’t Pardons’ Board matter as the RM42m SRC conviction wasn’t perfected in law for perfection in law. The UN Review, when it comes in soon, will also find the RM42m SRC case incomplete. The UN can only advise 2nd Review. It won’t happen now since Najib would be home soon and remains with the unity government. Also, the remaining criminal and civil cases against him would no doubt fizzle out. Some have already been thrown out by the court.
Agong could have granted Najib release by Decree, from arbitrary detention, based on miscarriage of justice arising from Tainted Ruling in the High Court on 28 July 2020. In that case, Najib would have gone home on 29 January. The Istana, by literally keeping Najib locked up for further seven months i.e. until 23 August this year, probably belabours in the delusion that the RM42m SRC conviction has been perfected in law for perfection in law.
It’s strange that Umno Youth has not poured into the streets, million strong, and demanded “Release Najib NOW! Enough is Enough”.
In the rule of law, the basis of the Constitution, the manner in which the accused was convicted comes first.
Conviction only follows if it has been perfected in law for perfection in law. There must be compliance on the court’s own procedures, due process, and the greater emphasis on the spirit of the law, albeit read with the letter of the law. The letter of the law, by itself, isn’t law at all. It’s about falling back on rule by law — i.e. rule by Man — and acting with impunity i.e. as seen in convicting and/or jailing by hook or by crook.
Umno has previously failed Najib in more ways than one.
When the BN (Barisan Nasional) came in with 79 parliamentary seats, the single largest number under one platform, after GE14 on 9 May 2018, Umno did not stand by Najib as caretaker Prime Minister in hung Parliament. It’s surprising that the party that ruled Malaysia since 1957 went out without even a whimper. Umno should allow belated post-mortem. That may facilitate law reforms.
The Istana did not invite Najib, as the incumbent, for first chance at putting together the government for hung Parliament.
There was breach of protocol and conventions when the Istana disregarded the fact that Najib wasn’t seen with the Agong for offering resignation or alternatively express willingness on putting together the new government.
If Najib had been sworn in as Prime Minister on 9 May 2018 in hung Parliament, he wouldn’t be in jail today. “Never without make-up visitation from Hell” (state of great distress) Tun Mahathir Mohamad, who had only 12 seats in Parliament and an Independent in tow, was sworn in as the 7th Prime Minister by reluctant Agong from Kelantan. The Agong abdicated within months.
It’s highly unlikely, once bitten being twice shy, that there would be repeat of the “Najib moment”, come GE16 in late 2027 if there’s hung Parliament.
Under the Basic Features Doctrine (BFD), which permeates the Constitution, no precedents can be created in law on the Prime Minister and Parliament. Just take a look at the Commonwealth jurisdictions. Even the white minority Apartheid regime in South Africa wasn’t put on trial.
The Prime Minister and Parliament stands indemnified for “acts in office”, has immunity, and implicit Pardon.
Agong, elsewhere, can simply disregard the numbers game and fall back on the caretaker Prime Minister getting first chance at forming the Cabinet, especially if there’s hung Parliament. This approach can be tested in Parliament by secret ballot, show of hands or by voice vote as when Prime Minister Datuk Seri Anwar Ibrahim was confirmed after GE15 in November 2022.
It’s highly unlikely that anyone would do better than the caretaker Prime Minister in hung Parliament. — NMH
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.